The Drug War and prior restraint

The late Alan Bock was author of "Ambush at Ruby Ridge" and "Waiting to Inhale: The Politics of Medical Marijuana." He was senior editorial writer and columnist at the Orange County Register and a contributing editor at Liberty magazine.

Once we’ve finished deploring the Orwellian and insidious censorship
and content “suggestion” of network entertainment undertaken by Gen.
Barry McCaffrey’s Office of National Drug Control Policy, it should be
time to consider and reform some of the deeper institutional
arrangements that made such prior restraint by the government not only
possible but virtually inevitable. To many of us it is screamingly
obvious that conservatives and anybody who claims to favor a
constitutionally limited government should be ready to abandon the Drug
War (especially and at least at the federal level). In addition,
however, the way the federal government regulates the electronic media
should be questioned and reformed to be in line with the First
Amendment.

The story that created a stir ran in the online magazineSalon.com
last week, creating mild embarrassment just as McCaffrey’s office was
preparing to gloat over its victories in arm-twisting the entertainment
industry into inserting simple-minded and usually inaccurateanti-drug messages into sitcoms and other TV
shows. It seems that for
the last 18 months McCaffrey’s office has been consulting and
negotiating, often enough with scripts in the draft stage before a
program is taped, to get various anti-drug messages inserted into
entertainment programming. Shows including “ER,” “Beverly Hills 90210,”
“Chicago Hope,” “The Drew Carey Show,” “Seventh Heaven,” “America’s Most
Wanted,” “Home Improvement,” “Smart Guy,” “The Wayans Brothers,” “Sports
Night,” and other shows have succumbed to ONDCP “suggestions” to change
scripts to put in the government-approved form of anti-drug messages in
various episodes. In return, the office authorized the payment usually
as credits for something the networks supposedly “owed” the government
of about $22 million worth of taxpayers’ money to the networks that
played ball with the government.

Here’s how the program evolved. In 1997 Congress passed a law
authorizing $1 billion for the government to buy anti-drug ads on
network television and other media, in response to the fact that the
quasi-private Partnership for a Drug-Free America (whose specialty has
become lying about marijuana) wasn’t content with the amount of money it
was able to raise privately for such purposes and the fact that many of
its “public-service” ads were relegated to low-viewing, non-prime-time
slots. But Congress wasn’t content to steal taxpayers’ money for this
dubious purpose. It also demanded a “match” from the networks one free
ad for every paid ad, or, in effect half-price ads.

Although NBC resisted the program at first, most of the networks were
happy to go along because ad revenues were flat or down anyway. But a
few months into 1998 various dot-com companies, rolling in dough,
started doing more TV advertising. The networks began balking at selling
to the government for half price when they could sell ads at full price.

So the drug policy office came up with what it viewed as a creative
alternative. Maybe if the networks could demonstrate that they were
inserting properly government-approved messages into their regular
programming, the government could give them credit for meeting their
match and the networks could then sell that ad time at full price. So
those that went along most enthusiastically got the credits and a
financial advantage over their competitors. Salon reporter Daniel Forbes
identified “some two dozen shows where specific single or multiple
episodes containing anti-drug themes were assigned a monetary value by
the drug czar’s office and its two ad buyers: Zenith and its eventual
replacement, Ogilvy & Mather Worldwide.” He identified other shows
“Promised Land,” “Cosby,” “Trinity,” “Providence” “Sabrina,” “Boy Meets
World,” “General Hospital” and the four youth-oriented NBC live-action
Saturday morning shows — but couldn’t dig out the monetary credit
given.

So, in effect, government propagandists were telling writers and
producers with a monetary carrot dangling what to put in ostensibly
independent entertainment programs. There was no “Warning: This Program
Includes Government-Prescribed Propaganda” label. For the most part, the
writers and other “creative” people seem to have been unaware of the
monetary considerations and several expressed outrage when they found
out, but the network honchos and ad execs knew full well. Neither the
networks nor the ONDCP went out of their way to inform the public of
this cozy and lucrative arrangement before the Salon.com article came
out.

All the outrage about insidious mind control is perfectly justified,
and it should be compounded by the fact that the ONDCP’s preference was
for simplistic, inaccurate and almost certainly ineffective ways to
convey the message. For example, an episode of WB’s “Smart Guy”
originally revived a previously rejected script in which the main
character drinks beer to impress two older, popular boys. The drug
czar’s office turned the popular guys into clownish losers from the slow
reading class and the drinking was moved from a party’s main room to a
furtive session in the utility room.

As The San Jose Mercury News’ Joanne Jacobs pointed out, however,
“In real life, drinkers are sometimes popular and cool, and don’t hide
in the utility room at parties. Fast readers experiment with drugs out
of curiosity; they’ve heard so much about it in drug ed and usually
don’t become addicts. The reasons people use drugs and alcohol are
complex; the consequences vary depending on the person and the drug. ‘On
strategy’ is off reality.”

The deeper question, however, goes to the institutional arrangements
that have evolved over the years for the electronic media. When radio
started to become a reality during the 1920s, government authorities
were not content simply to understand that this new means of
communication was simply communication and speech through different
methods and let the First Amendment apply. Instead, they developed the
clearly untrue theory that the “airwaves” were the property of “the
people” (i.e., the government) and those that who used them would have
to be licensed by the government. Eventually, in 1934, the Federal
Communications Commission was created to license and regulate
broadcasters, imposing all sorts of “public service” requirements on
them, as well as content censorship that in essence invalidated the
First Amendment where electronic media are concerned.

One of the consequences is that the electronic media have never been
either free enterprise or a free press. The networks, at least until the
advent of cable, were government-protected cartels that traded
constant government supervision for protection of their places in the
market. Despite brave talk about being independent members of the press
(and, to be fair, some good reporting, even as the British
government-owned BBC is capable of good reporting) the broadcast media
have always been subject to license-yanking by the government, so they
have always worked hand-in-glove with the government to be
“responsible,” as bureaucrats defined the term.

The main argument for government licensing was scarcity of space on
the airwaves; stations would inevitably “step on the signals” of other
stations, creating chaos and confusion, without comprehensive government
regulation and oversight. This was a lie; at the time private
arrangements to allocate and respect broadcast wavelengths were in place
and working before the FCC was formed. With the emergence of FM, cable,
satellite broadcasting and the 500-channel-and-expanding TV universe, it
has become increasingly apparent that it’s a ludicrous and utterly
outdated argument. But the regulation continues.

Part of the reason the TV networks were so willing to cooperate with
McCaffrey’s office aside from the obvious monetary inducements is that
their corporate culture from the outset has included cooperation with
government regulatory authorities over issues relating to content. The
legacy of unjustified comprehensive regulation by the federal government
(see if you can find authority for that in the U.S. Constitution) is
part of the reason Congress (including titular conservatives and
constitutionalists) didn’t think twice about imposing a “matching”
mandate on broadcast media. They wouldn’t have tried it with the print
press.

Unfortunately, all too many would-be guardians of the First Amendment
are also liberals who believe a little (or a lot) of government
regulation of almost everything is a Good Thing. So aside from a few
murmurs from time to time, the broadcast media and most of those who
view themselves as protectors of freedom of speech have failed to
challenge federal regulation of the broadcast media, although it is
clearly unjustified by technological concerns and amounts to an
ongoing, systematic violation of the First Amendment.

Those who are alarmed or outraged by Gen. McCaffrey’s stint as a TV
program director, then, should think about mounting a campaign not just
against this particular abuse (McCaffrey has already announced that his
office won’t do advance checks of scripts any more though the “matching
credit” program will continue) but to abolish the Federal Communications
Commission and finally treat the electronic media as what they are: the
press with different technology than ink and paper. Only then will the
First Amendment rights of broadcasters have a chance of being honored.

Such a campaign would aid emerging Internet communicators as well. It
should be obvious that the government dearly desires to regulate the
Internet and other computer/communications technologies on something
resembling the FCC model. It has used understandable concern over
pornography and unreliable information on the Internet to try to get its
grubby mitts on cyberspace, establishing some kind of precedent for what
would in time become much more comprehensive regulation. The main reason
it has failed to date aside from nascent political awareness among
Netizens is that the technology changes faster than its slow-moving
bureaucrats can develop possible regulatory protocols. But that might
not be the case forever.

All of which brings us to the Drug War, the other comprehensive
underlying justification for abuse of rights, censorship and other
government outrages that (one would hope) would never be tolerated by
free Americans unless an often-justified but usually emotional concern
about abuse of drugs encouraged them to look the other way. The Drug War
has led to the gutting of the Fourth Amendment (search-and-seizure), to
unprecedented snooping into private places, to cruel jailing of people
with medical or psychological problems. It’s the main reason we’ve built
so many prisons, many of which are hellholes. It has led to the
abandonment of the Posse Comitatus Act barring the military from
domestic law enforcement, and has been a huge factor in the ongoing
militarization of police forces. It has encouraged wide-scale corruption
among police and public officials and otherwise unjustifiable
intervention into the affairs of other countries.

The Drug War hasn’t worked; if anything it has increased the use of
illicit drugs while bringing on all sorts of unpleasant and sometimes
deadly side effects — and it is unconstitutional. I defy anyone to
read through the enumerated powers granted to the national government in
the Constitution and find any authority for making the possession of an
inanimate object a criminal offense.

If we want to have a prayer of moving into a new millennium with a
limited government that respects the rights of citizens, we need to
think about eliminating federal regulation of the electronic media and
of the substances adults are allowed to put into their bodies.